Lih Y. Young, Plaintiff-appellant, v. National Center for Health Services Research, Defendant-appellee, 887 F.2d 1082 (4th Cir. 1989)

Lih Y. Young appeals the dismissal of her case for lack of jurisdiction. Finding no error, we affirm the decision of the district court.

Appellant Lih Y. Young, Ph.D., is a former employee of the National Center for Health Services Research (the "Center"), a part of the Department of Health Services ("DHHS"), which is supervised by the Assistant Secretary for Health. In June 1984, Dr. Young filed an administrative complaint against the Center, alleging that the Center discriminated against her on the basis of national origin and that she was forced to resign in March 1984. The complaint was rejected by DHHS, which ruled that Dr. Young had failed to bring her complaints to the attention of an Equal Employment Opportunity ("EEO") counselor within 30 days. Dr. Young appealed to the EEO, which affirmed the decision of the DHHS. Dr. Young, proceeding pro se, filed a civil action in the District Court for the District of Maryland on June 14, 1985. The complaint was captioned in pertinent part:

National Center for Health Services Research

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Attn: John Marshall, Director

The Attorney General, the United States Attorney, and the Center were served on July 18, 1985, thirty-four days after the filing of the complaint.

After the case was referred to a magistrate, the magistrate dismissed the action for failure to exhaust administrative remedies; the magistrate found that Dr. Young did not contact an EEO counselor in a timely manner. Dr. Young obtained counsel and appealed. This court reversed, holding that the date of her resignation, 29 days before her first contact with the EEO officer, was the appropriate date to start the running of the 30-day limit where a plaintiff had alleged constructive discharge. Young v. National Center for Health Services Research, 828 F.2d 235, 238 (4th Cir. 1987). The case was remanded to the district court for a decision on the merits.

On remand, the defendant moved to dismiss for lack of subject matter jurisdiction, claiming that Dr. Young had failed to name the proper defendant--the Secretary of DHHS. Dr. Young opposed the motion. She also moved to amend the complaint to specifically relate back to the original complaint date pursuant to Fed. R. Civ. P. 15. The district court denied the motion, holding that the motion to amend could not relate back under Fed. R. Civ. P. 15 because service had not been made within the proper statute of limitations as mandated by that Rule. Young v. Nat'l Center for Health Services Research, 704 F. Supp. 88, 90 (D. Md. 1988). This appeal followed.

In this appeal, we are asked to decide (1) whether the district court erred when it dismissed Dr. Young's action for lack of jurisdiction because she failed to name the proper defendant, and (2) whether the district court erred when it denied Dr. Young's motion to amend her complaint.

The district court, relying on 42 U.S.C. § 2000e-16(c), dismissed appellant's suit because the proper defendant had not been named. That statute provides in pertinent part:

[A]n employee ... if aggrieved by the final disposition of his [administrative] complaint,

... may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant. 42 U.S.C. § 2000e-16(c) (emphasis added).

Appellant contends that the district court erred in dismissing her action because she in fact did name the proper defendant: John Marshall, head of the "unit" in which she worked.¹  Yet, appellant conceded to the district court, and in her brief to this court, that she should have named the Secretary of the DHSS as the defendant.²  We hold that an issue conceded at the district court level cannot be reargued at this level. See, e.g., International Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215, 224 (7th Cir. 1981) ("It is well settled law that a party cannot complain of errors which it has committed, invited, induced the court to make, or to which it consented." (Citations omitted.)); Pye v. Mitchell, 574 F.2d 476, 480 (9th Cir. 1978) ("Where an issue is conceded below, it cannot be raised for the first time on appeal." (Citations omitted.))

Because the appellant has conceded that the Secretary was the proper defendant, she is barred from appealing the district court's decision that it lacked subject matter jurisdiction because the Secretary was not named as the defendant.

The Appellant also contends that the district court erred when it denied her motion to amend her complaint to name the Secretary as the proper defendant because the amendment should have been allowed to relate back to the original complaint pursuant to Fed. R. Civ. P. 15(c).³  " [T]he language of the Rule requires, in plain and clear terms, that the notice [required under the Rule for relation back when there is a proposed change of parties] be given 'within the limitations period.' " Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir. 1985). As the Supreme Court has cautioned, we cannot "temper the plain meaning of the language by engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint.... Under Rule 15(c), the emphasis is upon 'the period provided by law for commencing the action against' the defendant." Schiavone v. Fortune, 477 U.S. 21, 30 (1986); see also Weisgal, 774 F.2d at 1279. Because the plaintiff did not serve the proper defendant until 34 days after filing the complaint, Rule 15(c)'s relating back provisions cannot apply.

Because the proper defendant did not receive notice during the limitations period of the action against it, the district court was correct in holding that the amendment could not "relate back" to the date the original complaint was filed.

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.